IN THE CASE OF:
BOARD DATE: 23 February 2012
DOCKET NUMBER: AR20110015787
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests promotion to sergeant (SGT)/E-5.
2. He states he was selected by a promotion board and orders were issued, but he left Germany due to expiration term of service (ETS) before he was promoted. If he was not promoted, he would like to know why. He knows that another Soldier was promoted and he had a lower score than he did. He states he earned the promotion due to his performance and he does not care about any monetary loss.
3. He provides a memorandum, dated 5 May 1971, subject: Recommended Listing for Promotion of Personnel to Grade E-5 Without Regards [sic] to Position Vacancy.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 11 June 1968.
3. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4)/E-4 effective 26 September 1969.
4. A DA Form 3357-R (Board Recommendation), dated 28 January 1971, shows he was not recommended for promotion to specialist five (SP5)/E-5 by a majority of the promotion board's membership. On 8 February 1971, he was counseled concerning his promotion to pay grade E-5.
5. He provides a memorandum, dated 5 May 1971, subject: "Recommended Listing for Promotion of Personnel to Grade E5 Without Regards [sic] to Position Vacancy," signed by the Commander, Headquarters, 81st Maintenance Battalion, showing he was placed on a recommended list for promotion to pay grade E-5 effective 5 May 1971. This memorandum stated any change due to rotation, reassignment, or change of appointable status of any individuals as defined in Army Regulation 600-200 (Enlisted Personnel Management) would be reported immediately to the headquarters that issued the memorandum.
6. He was honorably released from active duty (REFRAD) on 29 May 1971. His DD Form 214 shows in:
* item 5a (Grade, Rate or Rank) - "SP4"
* item 5b (Pay Grade) - "E4"
7. His record is void of documentation showing he was promoted to SGT/E-5.
8. Army Regulation 600-200, in effect at the time, governed the promotion of enlisted personnel.
a. Chapter 7 provided the criteria for promotion to pay grade E-5. It stated, in pertinent part, that the names of individuals failing to qualify for reenlistment or extension of current enlistment to meet the precondition service obligation for promotion to pay grade E-5 would be removed by the promotion authority at the time the individual was determined ineligible to reenlist or extend.
b. Chapter 7 further stated the precondition service obligation for promotion to pay grade E-5 was 3 months and waivers would not be granted. The regulation directed the promotion authority to remove from the local recommended list the name of any individual who was not qualified or who failed to qualify for reenlistment or extension of current enlistment to meet the remaining obligated active service requirement by the last day of the month established for promotion. Removal under this provision was mandatory.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's request for promotion to SGT/E-5.
2. He provides a memorandum showing he had been placed on a recommended list for promotion to pay grade E-5 in May 1971 and he states orders were published promoting him to pay grade E-5. However, he did not meet the precondition of a 3-month service obligation for promotion to pay grade E-5, the promotion authority was required to remove his name from the local recommended list, and the order promoting him to pay grade E-5 would have been revoked.
3. In view of the foregoing, there is no basis for granting the relief he requests.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ __X____ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X_______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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